NOTES OF RECENT CASES Protective Ass'n v. Gumming, 170 N. Y. 315, 63 N. E. 369. CRIMINAL LAW. (PLACE OF PAYMENT — BUR TON CASE) UNITED STATES SUPREME COURT. The charges against Senator Burton of render ing services in a case in which the United States was a party in violation of section 1782 of the Revised Statutes are reviewed by the Supreme Court in Burton v. United States, 25 Supreme Court Reporter, 243. The facts showed that checks in payment for these services were drawn on a St. Louis trust company and sent to Senator Burton in Washington, and were there indorsed and deposited by him in a local bank and were afterwards paid at St. Louis, and that the amount of these checks was immediately, upon deposit, credited by the Washington bank to the account of the Senator, who then had the right to draw against the account, without waiting for pay ment at St. Louis. The indictment alleged the payment at St. Louis, and the Supreme Court grants a new trial on the ground that the evi dence above referred to did not support the in dictment. Judge Harlan dissents on the ground that the Washington bank upon receiving the checks became in every substantial sense the Senator's agent and representative to present the checks, in which case the offense of receiving by means of these checks the compensation for ser vices rendered in violation of the statute was committed at St. Louis and not at Washington. The Judge further argues that in a strict sense no title or ownership in the checks passed to the Washington bank, and states that if the St. Louis bank had refused to accept or honor them no action could have been maintained against it by the Washington bank. In support of this propo sition he cites a number of authorities. He con cludes by stating that in reversing the judgment upon the grounds stated in the majority opinion, the court has sacrificed substance to mere form. DEAD BODIES. MAY SUE)
(RIGHTS OF PROPERTY — WHO
WISCONSIN SUPREME COURT. A very interesting discussion as to property rights in dead bodies is found in the case of Koerber v. Patek, 102 Northwestern Reporter, 41. It seems that the plaintiff's mother died in a hospital, and her son, to whom instructions had been given to take charge of her body, consented to the hospital authorities making a post mortem examination of her stomach. The stomach was removed, and the authorities refused to return it. An action was therefore brought for men
tal suffering, and damages were assessed at $5,000. The court first holds that the sense of outrage and mental suffering directly resulting from these acts on the part of the hospital author ities were properly considered as independent ele ments of compensatory damages, and then holds further that in the absence of a living spouse a son is the lawful custodian of the body of a de ceased parent, and may bring such an action as that outlined above. The discussion as to prop erty in dead bodies arises in connection with this latter holding. The point has never arisen before in Wisconsin. Chapman v. Western Union Tel. Co., 88 Ga. 763, 15 S. E. 901, is referred to in support of the proposition that the law protects only the person and the purse. To the proposi tion that there can be no property in a dead body the court cites the following American cases: Guthrie v. Weaver, i Mo. App. 136, and Keycs v. Konkel, 119 Mich. 350, 78 N. W. 649, and the English cases of Foster v. Dodd, L. R. 3 Q. B. 67; Queen v. Fox, 42 Eng. Com. Law, 658; In re Church, 3 Edw. Ch. 153, 168; and also 2 Blackstone's Commentaries, page 429. The doctrine arose from the dictum of Lord Coke in Hayn's Case, 3 Inst. no, 2 East's P. C. 652, where, in deciding that the ownership of the shroud re mained in those who had purchased it, he gives as a reason, among others, that the dead body was not capable of ownership. This remark has been perverted or misunderstood as asserting that the dead body itself is not capable of being prop erty. The court quotes from Bogert v. Indian apolis, 13 Ind. 134, and also the holding of the Supreme Court of Rhode Island in which that court gives an historical review of the rights of relatives over the burial of their dead tinder sev eral systems of laws. All of the cases in which this point has been passed upon in one form or another are set out in the opinion on page 42. GUARDIANSHIP. (WELFARE OF INFANT — RIGHT TO CUSTODY) ARIZONA SUPREME COURT. The case of New York Foundling Hospital v. Gatti, 79 Pacific Reporter, 231, is of more than usual interest because of the peculiar facts in volved and because of the unqualified support which the court gives to the doctrine that the court will determine that the welfare of the infant is of first importance in deciding the cus tody of children, and that custody will be awarded irrespective of any legal claims which may be presented. It seems that the Foundling Hospital, upon representations made by a Spanish priest in Arizona, sent over 40 children, between the ages of eighteen months and five years, in charge
